Lorence v. Goeller, 2005 Ohio 2678 (OH 6/1/2005)

• Decision Date: 01 June 2005
• Docket Number: C.A. No. 04CA008556.
• Citation: 2005 Ohio 2678
• Parties: Richard Lorence, Appellee, v. Ben Goeller, Appellant.
• Court: Ohio Supreme Court

Page 1

2005 Ohio 2678

Richard Lorence, Appellee, v. Ben Goeller, Appellant.

C.A. No. 04CA008556.

Court of Appeals of Ohio, Ninth District, Lorain County.

Dated: June 1, 2005.

Appeal from judgment entered in the Court of Common Pleas County of Lorain, Ohio Case No. 02 JG 99619.

James M. Wilsman and Moira A. Wopershall, Attorneys at Law, The Tower at Erieview, Suite 1420, 1301 East Ninth St., Cleveland, OH 44114-1800, for Appellant.

Patrick D. Riley, Attorney at Law, 520 Broadway, Suite 200, Lorain, OH 44052, for Appellee.

DECISION AND JOURNAL ENTRY

PER CURIAM.

{¶1} Appellant, Ben Goeller, appeals from the journal entry of the Lorain County Court of Common Pleas, Juvenile Division, which granted legal custody of the subject child to appellee, Richard Lorence. This Court affirms, in part, and reverses, in part.

I.

{¶2} Appellant and Rondi Goeller were married when Rondi gave birth to Bryan Goeller on June 14, 1993. Rondi died approximately four months later after suffering a stroke. More than one and a half years after the child's birth, appellee commenced a parentage action alleging that he was the child's biological father. The parties complied with court ordered DNA testing, which showed that appellee was the child's biological father. The juvenile court declared appellee to be the child's biological father on February 27, 1996.

{¶3} Appellant and appellee entered into a shared parenting plan, which was approved by the juvenile court. This Court subsequently found the shared parenting plan to be void ab initio. Lorence v. Goeller (July 19, 2000), 9th Dist. No. 98CA007193. This Court further restored appellant as the child's sole custodial parent. Id. Notwithstanding the juvenile court's assertion that this Court's pronouncement to that effect was merely dicta, this Court was restating a legal truth. By virtue of the fact that the child was born to Rondi and appellant during the course of their marriage, appellant was the child's custodial parent. Obviously, an order of custody does not need to be given to the married parents. Because no child exists in a custodial void, it is axiomatic that appellant was the child's sole custodial parent after his mother's death until such time as a court of competent jurisdiction ordered otherwise.

{¶4} On December 27, 2002, appellee filed a complaint for legal custody of the child pursuant to R.C. 2151.23. In his complaint, appellee alleged that he was the natural father of the child and that "[i]t is in the best interest of the minor child that plaintiff be awarded legal custody of the minor child." Appellant answered, denying that an award of legal custody to appellee would be in the child's best interest. On February 23, 2004, appellant filed an amended answer and counterclaim for legal custody of the child, alleging that legal custody to appellant would be in the child's best interest.

{¶5} The matter proceeded to contested custody hearing on May 24 and 25, 2004. The trial court, in reliance on the test set forth in In re Perales (1977), 52 Ohio St.2d 89, awarded legal custody of the child to appellee upon a finding that appellee was the biological father of the child and that appellee was suitable to parent the child. Appellant timely appeals, setting forth six assignments of error for review.

II. ASSIGNMENT OF ERROR I

"The trial court erred and abused its discretion in utilizing the improper standard for a child custody proceeding under R.C. 2151.23(A)(2) between a parent and a non-parent as set forth in In re Perales, that an award of custody to the parent would be `devastating' to the child, instead of the proper standard of `detrimental' to the child."

{¶6} Appellant argues that the trial court misapplied the standard in In re Perales, requiring the trial court to find a natural parent unsuitable before it may award custody of a child to a nonparent. Specifically, appellant argues that the trial court considered whether an award of custody to the natural parent would be devastating to the child, as opposed to detrimental. This Court disagrees.

{¶7} The Ohio Supreme Court held that "[i]n an R.C. 2151.23(A)(2) child custody proceeding between a parent and a nonparent, the hearing officer may not award custody to the nonparent without first making a finding of parental unsuitability—that is, without first determining that a preponderance of the evidence shows that the parent abandoned the child, that the parent contractually relinquished custody of the child, that the parent has become totally incapable of supporting or caring for the child, or that an award of custody to the parent would be detrimental to the child." In re Perales, 52 Ohio St.2d at syllabus.

{¶8} In this case, the trial court found that appellee had neither abandoned nor contractually relinquished custody of the child, nor had appellee become totally incapable of supporting or caring for the child. The trial court continued:

"Consequently, the Court must award custody of Bryan to Lorence unless it is sufficiently established that the detriment to Bryan caused by such an award would warrant a divestment of Lorence's fundamental parental rights." (Emphasis added.)

{¶9} The trial court then cited several cases addressing the issue of parental suitability, including In re Dunn (1992), 79 Ohio App.3d 268, 272, which stated that removing the subject children from their stepmother's (nonparent's) home would have a "devastating" and "detrimental" effect on the children.

{¶10} The trial court continued:

"In the present case, Bryan will arguably suffer some detriment if placed in Lorence's custody in that he will have to change both his primary residence and neighborhood, as well as attend a different school. These are certainly stressful and disruptive events, but the Court cannot conclude from the record that their occurrence will have a `devastating' impact on Bryan, or that they will cause him such detriment as to warrant the divestment of Lorence's parental rights. ***

"*** However, the holding in In re Porter (1996), 113 Ohio App.3d 580 makes it clear that just because one environment presents an arguably better situation for a child does not mean the other is necessarily detrimental." (Emphasis added.)

{¶11} The trial court then concluded that appellee was a suitable parent.

{¶12} Under the circumstances, the trial court clearly considered appellee's suitability as a parent in terms of detriment to the child. This Court cannot say that the trial court modified or otherwise enhanced the standard to require that an award of custody to appellee must be devastating to the child before appellee might be divested of his fundamental right to parent his natural child. Appellant's first assignment of error is overruled.

ASSIGNMENT OF ERROR II

"The decision of the trial court in finding that plaintiff/appellee was a suitable parent and awarding him custody of the minor child, bryan goeller, was an abuse of discretion."

{¶13} Appellant argues that the trial court abused its discretion, when it found appellee to be a suitable parent and awarded legal custody to appellee. This Court disagrees.

{¶14} A trial court retains broad discretion in child custody matters, and this Court will only reverse the trial court upon a showing of an abuse of discretion. Booth v. Booth (1989), 44 Ohio St.3d 142, 144. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. An abuse of discretion demonstrates "perversity of will, passion prejudice, partiality, or moral delinquency." Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621. When applying the abuse of discretion standard, this Court may not substitute its judgment for that of the trial court. Id.

{¶15} In addition, this Court's role is to ascertain "whether the award of custody is supported by a substantial amount of credible and competent evidence." Poulton v. Poulton (Feb. 7, 2001), 9th Dist. No. 3056-M. This Court, therefore, accords the trial court's decision "the utmost respect as the trial court is better equipped to weigh the evidence due to the knowledge gained through the observation of witnesses throughout the custody proceedings." Ives v. Ives, 9th Dist. No. 02CA008176, 2003-Ohio-3505, at ¶18.

{¶16} The instant custody dispute was brought pursuant to R.C. 2151.23(A)(2), which provides that the juvenile court has exclusive original jurisdiction to determine the custody of any child not a ward of another court of this state. This Court has acknowledged that "there is no provision of the Ohio Revised Code that provides a standard for a juvenile court to apply in determining custody disputes that fall within the jurisdiction provided by R.C. 2151.23(A)(2)." Baker v. Baker (1996), 113 Ohio App.3d 805, 809. Therefore, this Court looks to Ohio case law for the framework which guides juvenile courts in such disputes. Ives at ¶12.

{¶17} This Court has stated:

"Although custody proceedings involving disputes between parents are best served by looking solely at the welfare or best interests of the child, `the court's scope of inquiry must, of necessity, be broader in R.C. 2151.23(A) custody proceedings between a parent and a nonparent, which bring into play the right of the parent to rear his own child.' [Baker, 113 Ohio App.3d] at 810, citing In re Perales (1977), 52 Ohio St.2d 89, 96. The fundamental rights of a parent are effectuated by severely limiting the circumstances under which a parent may be denied custody of their [sic] minor children. [In re Hockstock, 98 Ohio St.3d 238, 2002-Ohio-7208,] at ¶17, citing In re Perales, 52 Ohio St.2d at syllabus. Therefore, in these instances, there must be a finding a parental unsuitability before child custody can be awarded to a nonparent. Hockstock at ¶18. See Baker, 113 Ohio App.3d at 811. Suitability or lack thereof, essentially measures...